United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-004636

First-tier Tribunal No: EU/54715/2023

 

THE IMMIGRATION ACTS

 

Decision & Reasons Issued:

 

On 3 ^rd of April 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE RIPLEY

 

Between

 

ABIODUN KAYAFAT OLUWA

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms A Bailey-Perkins of Catherines Solicitors

For the Respondent: Ms S McKenzie, Senior Presenting Officer

 

Heard at Field House on 18 March 2025

 

 

DECISION AND REASONS

 

 

Introduction

1.       This decision is the remaking of a decision of the First-tier Tribunal concerning the appellant's application for leave to remain under the European Union settlement scheme (EUSS) as a primary carer.

 

Relevant Facts

2.       The appellant is a Nigerian national. She has resided in the UK since 2007 and made a number of unsuccessful human rights applications. Her most recent such application was refused in an appeal dated 1 July 2021 (the decision of First-tier Tribunal Judge Lingam, hereafter referred to as Judge Lingam's decision). In June 2021 the appellant made an application as the Zambrano carer of her mother, a British national, on the basis that she satisfied both Condition 3 of paragraph EU11 of Appendix EU and also Condition 1 of paragraph EU 14. The appellant's mother is hereafter referred to as 'the sponsor'. Her application was refused in the respondent's reasons for refusal decision letter (RFRL) dated 15 ^th February 2023. The respondent did not accept that the appellant had established that:

(i)                  she was the primary carer of the sponsor,

(ii)               she was a person with a Zambrano right to reside before the specified date, 31 December 2020 or that she was such a person for a five-year period between 2006 and June 2021

(iii)             she was continuously resident before the specified date and up until the date of application

 

3.       In the respondent's review dated 12 May 2024, it was additionally argued that there was a lack of evidence that the sponsor would be required to leave the UK and, nor evidence to show why her care needs could not be met in the UK either by social services or alternatively, her other daughter.

 

Hearing

4.       The hearing has been recorded. The appellant, her sponsor and the sponsor's younger daughter adopted their statements. The sponsor was treated as a vulnerable witness in view of her health conditions. The appellant and the witnesses gave evidence regarding the appellant's care for the sponsor, the sponsor's health conditions and medical treatment, the sponsor's visit to Nigeria in 2013, the relationship between the sponsor and her younger daughter and her younger daughter's residence.

 

5.       In summary, in submissions Ms McKenzie relied on the findings of Judge Lingam's decision. These included that the sponsor's younger daughter also lived with her or lived close at hand, that the sponsor could access alternative care, that her dependency on the appellant had been exaggerated, that the evidence of the appellant and her mother should be attributed little weight in view of their lack of credibility and a lack of medical evidence that the sponsor required the appellant's care. The appellant was continuing to receive the treatment that she required. Ms McKenzie relied on Patel v Secretary of State for the Home Department [2019] UKSC 59. The appellant had stated that the sponsor had other relatives in the UK and the 2024 occupational therapy (OT) assessment referred to support from other family members, She argued that the sponsor could access alternative care.

 

6.       Ms Bailey-Perkins relied on her skeleton and argued that the findings in Judge Lingam's decision were not consistent. She submitted that the sponsor's younger daughter's evidence was open and reliable. She had moved out of the family home in 2014, and the appellant had been the sponsor's primary carer since then. The sponsor's younger daughter was working and could not provide care. The sponsor had given evidence of memory loss and that had not been disclosed or considered in the conclusions reached by the Judge Lingam. The detailed statements of the appellant and the witnesses also provided grounds to depart from the conclusions reached by Judge Lingam. The sponsor did not wish to be cared for by a stranger. Relying on MS (Malaysia) v Secretary of State for the Home Department [2019] EWCA Civ 580, the provision of alternative care was not fatal. Paragraph 62 of Judge Lingam's decision referred to the appellant providing moral support for the sponsor but earlier in her decision, she accepted that the appellant provided practical care. The appellant was taking the sponsor to her appointments. The sponsor's relationship with her younger daughter had broken down. The degree of care that the appellant was providing was exceptional. Since they had overcome their estrangement, they had developed a close bond. The sponsor maintains she would have to leave the UK, if the appellant did. The medical evidence stated that the appellant was the primary carer, and the appellant was cited repeatedly in the recent OT assessment.

 

Legal framework :

Extract from the definitions section of appendix one of appendix EU

person with a Zambrano right to reside

a person who has satisfied the Secretary of State by evidence provided that they are (and for the relevant period have been) or (as the case may be) for the relevant period they were: (a) resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met: (i) they are not an exempt person; and (ii) they are the primary carer of a British citizen who resides in the UK; and (iii) the British citizen would in practice be unable to reside in the UK, the European Economic Area or Switzerland if the person in fact left the UK for an indefinite period

Analysis

7.       Part of the appellant's human rights claim, the subject of Judge Lingam's decision, concerned the appellant's relationship with the sponsor. It was argued that her removal would comprise a disproportionate breach to her private life and that of her mother and their family life, due to the essential role the appellant played in caring for the sponsor. Although Judge Lingam's decision was not referred to in the RFRL, both representatives accepted that the principles of Devaseelan (Second Appeals, ECHR, Extra-Territorial Effect ) [2002] UKIAT 702 would apply to the findings made as to the degree of care provided by the appellant and the alternative care said to be available. This is particularly relevant as the appellant is required to show that she was the sponsor's primary carer before 31 December 2020. The representatives were unable to agree a summary of those findings, and each made detailed submissions. I am satisfied that the findings of Judge Lingam's decision may be summarised as follows:

(i)                  The sponsor's younger daughter continued to live with the sponsor and the appellant or she remained at hand to assist the sponsor (para. 40).

(ii)               The sponsor's ability to travel abroad in 2013 showed she was not dependent on the appellant at that time (para. 42).

(iii)             The sponsor has significant medical problems including a respiratory condition, an impairment to her mobility, joint pain, hypertension, chronic depression and PTSD (para. 43-45).

(iv)             The sponsor has a number of relatives and a daughter who can offer the same level of care and support as the appellant. The appellant had allotted herself as the sponsor's carer. The sponsor could also pay for support, as she was in receipt of Personal Independence Payment (PIP) and could also receive care from Social Services (para. 46).

(v)               It was not accepted that the appellant had been providing the sponsor with 24-hour care since 2007. It was probably the case that the appellant looked after the sponsor with the help of a second person or other family members. Alternatively, the sponsor was provided with less care than claimed (para 59).

(vi)             The care the appellant provided to the sponsor was not main nor essential as such community care services can be readily arranged with support of community social services. Neither was the care provided exceptional (para. 61).

(vii)           There was a lack of evidence as to the impact on the sponsor if the appellant's care was withdrawn. Social Services and her GP could intervene to safeguard the sponsor's wellbeing. Moral support could be provided by other relatives. The appellant and the sponsor could maintain their relationship remotely (para.62).

 

Primary Care

8.       As will be seen from the summary above, Judge Lingam's decision dealt in considerable depth with the care provided by the appellant to the sponsor and the consequence for the sponsor should the appellant be obliged to leave the UK. However, I accept Ms Bailey-Perkins submission that, for the purposes of the Zambrano test, the findings as to the degree of care provided are not particularly clear. The issue for this appeal is whether the appellant is the sponsor's primary carer or shares care equally. The reference in paragraph 61 to the appellant not being the sponsor's 'main carer' may be considered on point. However, as set out above that full sentence reads: " The care the appellant provided to the sponsor was not main nor essential as such community care services can be readily arranged with support of community social services." It is not clear whether the reference to the availability of alternative care is given as an explanation for why the appellant was not considered a 'main' carer or only relates to whether her care was essential.

 

9.       Considering Judge lingam's decision overall, I am not satisfied that it undermines the appellant's claim that she was the sponsor's primary carer at the time of that decision. The definition of a primary carer includes a situation where the appellant shares that care equally with another person so long as the other person is not exempt. The sponsor's younger daughter would be an exempt person. However, the finding in paragraph 59 does not clearly state that the appellant is sharing care equally. Instead, it states that she looks after the sponsor with the help of a second person. I am not satisfied that Judge Lingam would have used the phrase " with the help of a second person or other family members" if she meant to communicate that these individuals were providing the same amount of care or doing the majority of the care. She would instead have stated that the appellant was helping them.

 

10.   As set out in Judge Lingam's decision there were a number of letters before her that stated that the appellant was the sponsor's primary carer, reference is made to one of these at paragraph 45 of the decision. The appellant has provided copies in the bundle of that medical evidence predating 2020 and listing her as the main carer at pages 116, 240 and 245.

 

11.   The RFRL, set out evidence that was considered lacking to establish that the sponsor required a primary carer. However, the RFRL does confirm that it is accepted that the sponsor requires care for her medical conditions. It is not accepted that there is an additional test that the appellant should satisfy to show that the sponsor requires a primary carer rather than care from different sources. The appellant only needs to show that the sponsor require care and that she was the sponsor's primary carer. Reading Judge Lingam's decision as a whole and considering the evidence at pages 116, 240, 245, 84 and the OT assessment in 2024, I am satisfied that the appellant has shown that she was the sponsor's primary carer at the specified time, and this remains the case. There is a lack of evidence to find a change of circumstances.

 

Whether the sponsor would be unable to remain in the UK

12.   The decision of Judge Lingam is much clearer in relation to this factor. The Judge repeatedly states that the sponsor could, instead, be supported and cared for by other family members including her younger daughter and social services. Ms Bailey-Perkins argued that the sponsor had a memory problem which Judge Lingam was unaware of. She additionally relied primarily on the written and oral evidence provided by the appellant and the witnesses, that postdated that decision, to provide grounds to depart from the relevant conclusions of Judge Lingam.

 

13.   In relation to the former argument, Ms Bailey Perkins has not relied on medical evidence that the hypertension medication that the sponsor takes cause memory loss. Neither has she relied on medical evidence that shows that the sponsor is suffering from memory loss for this or another reason. The sponsor has not explained that she has been to her GP to complain about this side-effect. In any event, I am not satisfied that, even if it was accepted that the sponsor did suffer from memory loss, that this would undermine the decision of Judge Lingam as to the availability of alternative care. The availability of alternative care did not rest on the account given by the sponsor, who did not in any event, give evidence before Judge Lingam. The judge's conclusions were reached on the basis of the documentary evidence and the appellant's oral evidence.

 

14.   With regard to the fresh evidence provided by the appellant and the witnesses, I am not satisfied that the evidence was sufficiently consistent or reliable to provide adequate grounds to depart from Judge Lingam's decision. This is for the following reasons:

(i)                  The appellant's younger sister claimed to have left the sponsor's home in 2014 when she went to university and since, to have lived at the same address with friends. She claimed she had no tenancy agreement because she had made a verbal agreement with the family that she lived with, although she paid them rent. She had no alternative documentary evidence to show that she lived at an address in N16 rather than with the sponsor. To the contrary, she accepted that all her post continued to be sent to the sponsor's address and that she would collect it once every six months.

 

The sponsor stated in evidence that her daughter came to collect her post once or twice a week.

 

In view of the lack of documentary evidence that the sponsor's younger daughter lived elsewhere and in view of the inconsistency between her evidence and that of the sponsor, it is not accepted that there were grounds to depart from the finding made in Judge Lingam's decision that the sponsor's younger daughter either lived at the family home or remained on hand to assist.

 

(ii)               The sponsor stated the only relative she had in the UK was a nephew outside London. However, the appellant stated that the sponsor has both an uncle and a younger sister that lived outside London.

 

(iii)             When giving her evidence regarding her visit to Nigeria in 2013 the sponsor stated that it was strangers who had looked after her during her visit and she denied that she was looked after by family or extended family. The appellant stated that the sponsor was looked after by her adult children in Nigeria during that visit. Whilst this visit does not concern the availability of alternative care in the UK, it is an example of inconsistencies in the evidence that undermine the credibility of the sponsor. It is not accepted that the sponsor's recollection of who looked after her in 2013 was unreliable because of memory loss. The sponsor was adamant that she was not looked after by relatives.

 

(iv)             The sponsor's younger daughter stated that if the appellant had to leave the UK the sponsor would not go with her because the level of care was not the same in Nigeria. She stated another family member or Social Services would look after the sponsor.

 

15.   I found the oral evidence of the appellant and the sponsor herself that she would be compelled to leave to be insufficient grounds to depart from the findings of Judge Lingam's decision. I am not satisfied that the evidence of the appellant and the sponsor was reliable. Judge Lingam came to the same conclusion for reasons detailed in her decision and, in particular, the inconsistent evidence before her as to the existence of other family members in the UK (para 32). I am satisfied that Judge Lingam's decision clearly states that the sponsor would not be compelled to leave the UK but there would be other sources of care available to her and I am not satisfied there are grounds to depart from that conclusion. In fact, the 2024 OT assessment reiterates the availability of support from other family members at page 134 where it is stated that the sponsor's " support system, including her friends, family, and neighbors, has rallied around her" and at page 140 where it was recorded that there was " close by family support'". The sponsor denies that this information was given at the assessment but, on the balance of probabilities, I accept that the sponsor is supported as set out in this evidence. Judge Lingam found that it would not be a disproportionate interference to the private life of the appellant and the sponsor if the appellant was to leave the UK because the sponsor could rely on alternative care. It was not argued before Judge Lingam that the appellant's departure would also cause the sponsor to leave and that would comprise a disproportionate interference to the sponsor's private life. There was a lack of documentary evidence before Judge Lingam that the sponsor would also leave if the appellant was required to do so. Instead, in the appellant's oral evidence at that appeal, it was claimed that the sponsor would be pushed to commit suicide if the appellant left. That evidence was rejected by Judge Lingham who was satisfied that the sponsor's welfare could be adequately safeguarded.

 

16.   For the purpose of this appeal, I am satisfied that the conclusion that it would not be disproportionate for the sponsor to remain without the appellant are determinative of the issue of whether or not the sponsor would be required or compelled to leave the UK if the appellant left. Those findings were made in 2021 and I am satisfied that they show that the appellant could not satisfy (ii) of the definition of a Zambrano carer at the specified date.

 

17.   I will nonetheless go on to briefly deal with the authorities relied on by the representatives. Ms Bailey Perkins submitted, pursuant to paragraph 42 of MS Malaysia, that the availability of state care was not a trump card. If the nature and quality of the dependency of the EU citizen on her adult carer would cause the EU citizen to be compelled to leave, then the availability of state care would not be a decisive factor. Paragraph 26 sets out the relevant test as follows:

 

The test in the case of adult dependents is a very demanding one, which will be met only exceptionally, but remains one of practical compulsion such that the EU citizen is left with no practical choice but to leave the territory of the Union

 

18.   Ms McKenzie relied on paragraph 27 of Patel where it was held that it would " only be in exceptional circumstances that a third country national would have derivative right of residence by reference to a relationship of dependency with an adult union citizen."

 

19.   It was argued by Ms Bailey Perkins that these were exceptional circumstances and the sponsor and the appellant had developed a particularly close and therapeutic relationship, having overcome the pain of the separation when the appellant was a child. Again, there is a lack of evidence that this relationship is exceptional, save for the fact that I have accepted that the appellant has provided long-term personal care for the sponsor. There is also a lack of evidence to support the contention that the sponsor is not open to being cared for by other individuals, save for the evidence of the sponsor and the appellant, or that the sponsor suffers from a mental health condition that would comprise a particular obstacle to her receiving care from someone else.

 

20.   Importantly, the evidence of the sponsor and the appellant that the sponsor would be compelled to leave was undermined by the oral evidence of the sponsor's younger daughter, who maintained that she would remain in the UK because of the lower standard of care in Nigeria and would be looked after by other relatives and by state care. It may be argued that the sponsor's younger daughter may not be fully privy to the sponsor's thinking, due to the breakdown in their relationship as a consequence of the sponsor's difficulty accepting her younger daughter's sexuality. Nonetheless, her younger daughter attended the hearing to give evidence. I accept that the sponsor may not agree with her younger daughter's sexuality, but her younger daughter confirmed that she would go to help the sponsor if she was needed and she was not working at the time. There was no reason for her to invent possible alternative family members who could provide care to the sponsor. The sponsor's younger daughter makes the same case in her statement, that the sponsor would remain in the UK, but that the appellant's departure would have a detrimental impact on the sponsor's health and would leave her younger daughter feeling guilty. This is the same argument made in the sponsor's own statement where it is stated that she also believes her health will deteriorate in the appellant's absence and she is very distressed at the thought of the appellant having to leave.

 

21.   It is accepted that the sponsor would find the cessation of the appellant's daily care and their face-to-face relationship a significant loss. Nonetheless, I am not satisfied that she would have felt compelled to leave either in December 2020 or at the date of application or currently. I am satisfied, as was Judge Lingham, that the sponsor has the support of other relatives, and could also reasonably rely on care from social services and this is the choice she would have made and would still make if the appellant was required to leave. Thus, even if Judge Lingham's findings were not considered determinative, I am satisfied that the appellant has failed to establish that she met paragraph (ii) of the definition of a Zambrano carer either at the specified date or the date of application or currently.

 

22.   In the interests of completeness, I confirm that the appellant's continuous residence since 2007 was accepted by Judge Lingam and there is a lack of evidence to suggest that the appellant has left the UK since then.

 

23.   Nonetheless, for these reasons given above, the appeal is dismissed.

 

24.   No application was made for an anonymity direction, and I can see no reason to make any such direction in the circumstances of this case.

Notice of Decision

25.   I dismiss the appeal under Appendix EU of the immigration rules.

 

26.   No anonymity direction is made.

 

F Ripley

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

31 March 2025